ORDER M.H. Beg, J. - The Applicant was an Assistant Supervisor (Hydel), Sub Division Kakore in the district of Bulandshahr and was alleged to have demanded a bribe of Rs. 200/-. He was convicted on evidence including that of a trap and sentenced to two years' RI u/s 161 IPC and four years' RI u/s 5(1) (d) read with Sub-section (2) of the Prevention of Corruption Act. The Applicant was also sentenced to pay a fine. On an appeal, this Court, after the examination of the whole evidence, affirmed the Applicant's convictions, but his sentence u/s 5(1)(d)(2) was reduced from four years' RI to three years' RI. The sentences were made concurrent. 2. The Applicant has now applied practically for a review u/s 561-A Code of Criminal Procedure. He states that he is a young man of 28 years, who has lost his job as a result of his conviction and that he is the bread winner of his family consisting of his wife and children. It is also stated in the application that he is a first offender against whom there is no previous conviction. It is prayed that action may now be taken against him under the UP First Offenders (Probation) Act, 1938, (hereinafter referred to as 'the Act') and that an order under it may be substituted for the sentence of imprisonment. 3. Mr. R.S. Dhavan, appearing for the Applicant, contends that this is not an application for review of the judgment and order of this Court because the Applicant, after accepting the correctness of his conviction and sentence, relies upon certain new facts now placed before this Court for the first time for action u/s 4 of the Act. The question, therefore, has arisen whether this Court has power in such cases to act u/s 551-A Code of Criminal Procedure. No authority could be cited by either side on this question inspite of several opportunities having been given to produce some authority. I, therefore, consider it necessary to deal with this question as if it has arisen for the first time in this Court. 4. It is clear to me that the recording of a conviction on a charge is not the only part of the judgment of conviction by a court. The law provides, whenever an offence is created, a definition of the offence and after that, the sentence to be imposed.
4. It is clear to me that the recording of a conviction on a charge is not the only part of the judgment of conviction by a court. The law provides, whenever an offence is created, a definition of the offence and after that, the sentence to be imposed. Section 245(2) Code of Criminal Procedure lays down the mandatory duty of a Court to pass sentence upon an accused found guilty in a summons case trial. Section 258(2) Code of Criminal Procedure casts a similar mandatory duty on a court in the event of a conviction of an accused in a warrant-case trial. The corresponding provision for trials in High Courts and Courts of Sessions is Section 306 Code of Criminal Procedure. All these provisions contain a qualification or provision showing that the question of action u/s 562 Code of Criminal Procedure, in cases of first offenders, can only arise before the sentence is passed and the appropriate sentence is one of the essential points for determination which must, according to Section 367 Code of Criminal Procedure, be contained in the judgment. In Section 423 Code of Criminal Procedure, the power of the appellate court to interfere not merely with a finding of conviction but also with the sentence is specially mentioned It follows that an alteration in the sentence actually awarded can only take place by a prescribed procedure and that it amounts to a review of judgment. 5. To hold that no alteration in the sentence is sought when it is prayed that it may be substituted after a conviction and a sentence of imprisonment imposed by action u/s 4 of the Act will be sophistry. There is no question of conversion of a sentence into action u/s 4 of the Act. Sentencing to imprisonment and release on probation are entirely different kinds of action. Action u/s 4 of the Act may be taken, in suitable cases, instead of sentencing. But, once a sentence has been imposed, it has to be set aside before any action u/s 4 of the Act can be substituted for it. In other words, a clear review of the order imposing a sentence is involved here. Without reviewing the order and setting aside the sentence it will not be possible to act u/s 4 of the Act now. 6.
In other words, a clear review of the order imposing a sentence is involved here. Without reviewing the order and setting aside the sentence it will not be possible to act u/s 4 of the Act now. 6. A decision of a Full Bench of this Court in Raj Narain v. State 1959 AWR 43 lays down the ambit of Section 561-A Code of Criminal Procedure after considering the provisions of Sections 369 and 424 Code of Criminal Procedure in conjunction with it The majority view there was that this Court has the power even to review or alter its earlier decision in a criminal revision and to rehear the case because Section 561 A Code of Criminal Procedure contains the words : "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 7. Assuming, therefore, that there is a power of review in this Court in exceptional cases, it is to be sparingly exercised and in very exceptional circumstances. In the instant case, the power is not invoked in order to give effect to any order under the Code or to prevent any abuse of the process of a Court. The application before me could come, if at all, under the provision; "otherwise to secure the ends of justice". The question, whether the power "other wise to secure the ends of justice" can be invoked in a case has to be answered with reference to the provisions which already exist for securing the ends of justice. 8. Section 5(2) of the Prevention of Corruption Act makes it clear that a public servant who commits criminal misconduct in the discharge of his duty "shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine". It also lays down : "Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year".
It also lays down : "Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year". It is, therefore, clear that requirements of justice, as laid down in the law with regard to public servants, are that a lenient view cannot be taken of corruption in a public servant. It is for this reason that there is a provision that the sentence will not be less than one year. 9. It is a well established principle that where specific provisions regulate the exercise of a power, inherent powers of the Court are not available, See : e.g. AIR 1945 94 (Privy Council) and as we know, specified powers must be exercis ed in the manner provided or not at all See : e.g. AIR 1936 253 (Privy Council) . 10. In the instant case, action under the specific provisions of Section 4 of the Act is prayed for. But, such power, when exercised by an appellate court u/s 6 of the Act, must be invoked when the appellate powers of this Court to pronounce judgment are exercised. The matters which the Court has to take into account in judging whether an offender has to be released u/s 4 of the Act are : his age, his character, his antecedents, his physical or mental condition and the circumstances in which the offence was committed. Some of these are matters on which evidence has to be placed before the Court whose power is invoked for action u/s 4 of the Act. There is very little material before me to be able to judge of all the matters contained in Section 4 of the Act. In my opinion, these matters could only be placed before this Court when exercising its appellate powers and not afterwards and this is not a fit case for review of the judgment and order already given and setting aside of the sentence imposed so as to exercise the power given by Section 4 read with Section 6 of the Act. Such powers of review as this Court possesses u/s 561-A Code of Criminal Procedure could be invoked only in very rare and exceptional cases. Grounds such as those put forward in support of the application now before me can be trotted out in practically every case. 11.
Such powers of review as this Court possesses u/s 561-A Code of Criminal Procedure could be invoked only in very rare and exceptional cases. Grounds such as those put forward in support of the application now before me can be trotted out in practically every case. 11. I find that Section 562 Code of Criminal Procedure has been repealed in so far as the State of UP is concerned. It has been substituted by Section 4 read with Section 6 of the UP First Off enders (Probation) Act. The powers of the State Government, however, to take action under the UP Prisoners Release on Probation Act, 1938, are there. There is no provision in this country for the exercise of any supervision by the Court which convicts an accused person over his future conduct, behaviour and welfare with a view to passing appropriate orders having regard to these matters so as to carry out the object of reform after a conviction. That is left to the machinery provided by the UP Prisoners Release on Probation Act, 1938. If there are facts which justify release of the Applicant under the provisions of that Act, he can invoke the aid of the machinery provided by it. An application u/s 561-A Code of Criminal Procedure is not meant to be a substitute for appropriate action there. 12. This application is, therefore, dismissed. Application dismissed.